Strasbourg, 17 April 2008

Dear Mr T.,

On 11 April 2005, you submitted a complaint to the European Ombudsman against the European Commission concerning the non-respect by the Joint Research Centre of Regulation 631/2004(1).

On 4 May 2005, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 15 July 2005. I forwarded it to you with an invitation to make observations, which you sent on 13 September 2005.

I am writing now to let you know the results of the inquiries that have been made. I apologise for the delay in the handling of your case.

THE COMPLAINT

In his complaint, the complainant made, in summary, the following submissions. The complainant was a PhD student at Athens Polytechnic School and, as such, the holder of a European Health Insurance Card ("EHIC"). He obtained a scholarship from the Joint Research Centre in Ispra ("JRC") to complete his PhD and signed a relevant contract. Before the entry into force of the contract, he noticed that 8.5 % of the amount of his remuneration would be withheld for health care. On 25 January 2005, the complainant sent an e-mail to the responsible official of the JRC pointing out that he held an EHIC and that, therefore, he should be entitled to an exemption from the 8.5 % deduction. The JRC replied that this was not possible due to the applicable Italian legislation. However, in an information leaflet which was given to the complainant upon his arrival, it was explicitly mentioned that he had the right to choose between the EHIC and the Italian health insurance system. In a further e-mail exchange with the responsible persons of the JRC, the complainant was again told that his request could not be accepted.

The complainant thus lodged the present complaint with the European Ombudsman. He alleged that the JRC infringed Regulation 631/2004(2) with regard to the EHIC, and claimed that, as he possessed that EHIC, the JRC should not deduct an amount from his scholarship for health insurance. The Ombudsman opened an inquiry into this allegation and claim.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission made the following comments:

On 16 February 2005, the complainant signed a contract of employment for three years (n° 22706-2005-01 P1B20 ISP IT) with the Commission, which was represented by the Director of the JRC's Institute for Security and Protection of the Citizen. The complainant's role at the JRC would be to carry out a research project, namely, the "Validation of space imagery for the detection and identification of marine oil pollution", which related to the JRC's specific programme under the 6 th Framework Programme.

The complainant was a so-called "Category 20 Fellow", that is, a PhD-level fellow, who received a fellowship based on the above employment contract which was governed by Italian law. Under this law, the complainant's fellowship was subject to social security contributions which amount to approximately 8.89 % of his gross salary.

The Commission admitted that the information provided to the complainant may have been misleading in that it gave the impression that fellows in possession of an EHIC were not required to pay contributions to the Italian social security system. Indeed, a leaflet provided by the Commission's Welcome desk to fellows stressed that, in relation to sickness insurance, fellows, seconded national experts and stagiaires in possession of an EHIC were already covered. In fact, the information was misleading as the fellows were subject to a contract as employees under Italian law for which the employer was obliged to pay Italian social security contributions. In this regard, the Commission noted that it was in the process of transforming the contract under Italian law into a contract for contractual staff, as provided for under the Conditions of Employment of Other Servants of the European Communities. The concerned fellows were informed about their coverage for sickness insurance as mentioned in the Conditions of Employment of Other Servants.

As to the substance of the complaint, the Commission referred to Regulation 1408/71(3), as amended by Regulation 631/2004, which was applicable to the case in question. Regulation 631/2004 had not brought about changes that would have an impact on the complainant's social security status. Regulation 1408/1971, as subsequently amended, established, in terms of social security, the single country principle and further that employees were, in principle, subject to the social security system of the Member State in which they were employed. Employees who were resident in this Member State have, in principle, the same rights and obligations as nationals of that Member State. None of the exceptions to these principles which the Regulation foresaw were applicable to the complainant.

While the complainant was covered as a PhD student by the Greek social security system to which his EHIC was related, this had no effect on his obligation under Italian law, which complied with Regulation 1408/1971, to pay social security contributions as an employee.

The Commission furthermore observed that the purpose of the complainant's residence in Italy was not to study or follow vocational training in which case he could have remained, under certain conditions, within the Greek insurance system and receive benefits from the Italian system through his EHIC (or, in this respect, the former E 128 certificate). Nor had he invoked another activity which would have justified an insurance coverage under his home system.

In conclusion, the Commission, thus, confirmed that the deductions for social security contributions in question were imposed by Italian law which was in accordance with the Community law applicable to the case.

The complainant's observations and subsequent correspondence

In his observations on the Commission's opinion, sent on 13 September 2005, the complainant made the following remarks. First, he was satisfied with the fact that the Commission had recognised that it had provided misleading information. In addition, he acknowledged the fact that the JRC was in the process of transforming the contract, since such a change would be beneficial to all fellows in the future, but he insisted that he should not be paying health security contributions, and requested that the contributions already deducted from his salary be reimbursed.

Furthermore, he remarked that, being a doctoral student, he wished to pursue his studies at the JRC, and was informed that his status would be that of a "Category 20 Fellow", namely, a PhD-level fellow. He pointed out that this was mentioned not only on the front page of his contract, but also in the Commission's opinion. This implied that he was still a student on mobility for the purposes of his research, and that he should not have the status of an "employee" in Italy. His contract did not specify clearly his status.

Finally, the complainant considered that the Commission did not understand correctly Regulation 1408/71, since Article 17 of this Regulation provided for the possibility that somebody (such as he) covered by a Greek social security organisation could be exempted from the application of the Italian legislation on social security. Relatedly, he remarked that such an exemption had already been requested in his case.

In January 2006, the complainant sent to the Ombudsman a copy of a letter by which the Greek Ministry of Employment and Social Protection informed the social security organisation with which the complainant was affiliated, namely, TEVE, that the competent Italian authority, namely, INPS, had agreed, on the basis of Article 17 of Regulation 1408/71, to the complainant's exemption from the Italian social security system for employees and the continuation of his coverage by TEVE for the period from 15 February 2005 to 15 February 2008. The complainant also submitted a copy of the relevant request the Greek Ministry of Employment and Social Protection had addressed to INPS on 20 July 2005. In this document, the complainant was identified as an employee in Italy and as a self-employed person in Greece.

THE DECISION

1 Allegation that the JRC infringed Regulation 631/2004 with regard to the EHIC and relevant claim

1.1 The complainant concluded a contract with the European Commission, namely, its Joint Research Centre in Ispra ("JRC"), with a view to carrying out a research project . He considers that the JRC infringed Regulation 631/2004(4), by withholding 8.5 % of his remuneration for social security contributions, although he held a European Health Insurance Card ("EHIC"). The Commission does not accept this allegation.

1.2 The Ombudsman, first, notes that the complainant has not invoked any specific rules provided for in Regulation 1408/71, as amended by Regulation 631/2004, under which a person who holds an EHIC is only subject to the social security legislation of the Member State which has issued the EHIC and should not be subject to the social security system of another Member State. In fact, it appears that no such rule is provided for in Regulation 631/2004.

Moreover, it may be inferred that not only the Commission, but also the competent Italian and Greek authorities, considered that the complainant was an employee in Italy for the period at issue and was subject to the social security legislation of Italy, in accordance with Articles 13 to 16 of Regulation 1408/71. Indeed, the documents submitted by the complainant show that, in light of the above consideration the relevant authorities of Italy and Greece reached a common agreement providing, on the basis of Article 17 of Regulation 1408/71, for an exception to the provisions of Articles 13 to 16 as regards the complainant's case. Article 17, as it was in force at the relevant time, reads as follows:

"Two or more Member States, the competent authorities of these States or the bodies designated by these authorities may by common agreement provide for exceptions to the provisions of Articles 13 to 16 in the interest of certain categories of persons or of certain persons."

The complainant has not made any specific, duly substantiated, arguments to the effect that the above-mentioned consideration was wrong. The complainant's argument that his status as a Fellow at the JRC implied that he was still a student rather than an "employee" cannot be considered as such an argument, since it is not supported by any references to the contractual provisions regarding the nature and conditions of his occupation at the JRC and to its significance for his doctoral studies.

1.3 In light of the above, the Ombudsman concludes that the complainant's allegation has not been substantiated. Therefore, he finds no corresponding instance of maladministration by the Commission.

On the basis of this finding and taking into account the aforesaid agreement between the relevant authorities of Italy and Greece, the Ombudsman does not consider it justified further to inquire into and examine the complainant's claim that the JRC should not make the deductions in question from his remuneration.

1.4 The Commission has recognised that certain information, contained in a leaflet provided by the Commission's Welcome desk, that the complainant received about his coverage by the Italian social security system was inaccurate and/or misleading. Given that (a) before the conclusion of his contract, the complainant had been specifically alerted to the fact that a deduction would be made from his remuneration, for contributions to the Italian social security system; (b) his relevant grievances were explicitly rejected by the Commission (in an e-mail dated of 25 January 2005); and (c) the Commission has already made a commitment to take appropriate action to ensure that shortcomings such as the one involved in the leaflet at issue would not occur again, the Ombudsman will not examine this issue separately. However, he reiterates his relevant further remark in his decision on complaint 272/2005/(OV)DK(5), in which he also took note of the above commitment made by the Commission.

2 Conclusion

On the basis of his inquiry into the present complaint, the Ombudsman finds no instance of maladministration corresponding to the complainant's allegation. He, therefore, closes the case.

The President of the Commission will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Regulation (EC) No 631/2004 of the European Parliament and of the Council of 31 March 2004 amending Council Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, and Council Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71, in respect of the alignment of rights and the simplification of procedures (Text with relevance for the EEA and for Switzerland), OJ 2004 L 100, p. 1.

(2) See footnote 1.

(3) Council Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ 1971, L 149, p. 2), which has been amended on a number of occasions.

(4) See footnote 1.

(5) The Ombudsman's decision complaint 272/2005/(OV)ID is available on his website (http://www.ombudsman.europa.eu). The relevant part of the Further Remark provides as follows: "(....) It further seems (...) that the information given to the complainant [by the Commission] about his health insurance was contradictory, unclear and, to a certain extent, inaccurate. Relatedly, the Commission has indicated that steps have since been taken to ensure that a case of this kind would not arise again.

The Ombudsman takes note of the above commitment on the part of the Commission and encourages it to verify, in consultation with the competent national authorities, the accuracy of the information it provides in this context about applicable national rules. The Ombudsman also remarks that, in certain circumstances and, in particular, where there is objectively justifiable uncertainty about the content of the applicable rules, it may be appropriate for the Community Administration to provide information accompanied by properly formulated reservations about its accuracy."